United States v. Tommy Asher

CUDAHY, Circuit Judge, concurring.

The district court carefully examined all the government evidence of “bad acts” involving 13 uncharged vehicles, presented through 20 witnesses and more than 100 exhibits. This evidence was intended to paint a “more complete picture” of Asher’s alleged criminal designs in processing a single car and it occupied the second half of the trial. The crimes charged related only to vehicle 111, though, and the “prima facie” evidence of these crimes occupied the first half of the trial only.1 Originally, the evidence of the other vehicles had been intended to support conspiracy charges which were dismissed on double jeopardy grounds at the outset of the trial. The defendant, of course, complains that he is *497in effect being tried for conspiracy even though the conspiracy charge was thrown out. The government, red-faced, responds that Asher was involved in a “continuing crime even though [he] was not on trial for conspiracy.” Appellee’s Br. at 14.

This case seems to present a special case of Rule 404(b), where the “bad acts” testimony arguably touches upon almost all of the approved bases for admission of this kind of evidence — knowledge, intent, motive, plan, etc. — but essentially provides a context within which Asher’s conduct can be more reliably characterized. However, the district court’s wholesale invocation of all the possible grounds for admission blurs important lines among them. There is a difference, for example, between evidence that might show that Asher knew how to process cars (knowledge) and evidence that might show that Asher processed each of the cars in a distinctive fashion (plan). The district court’s approach gives short shrift to these differences.

Because we are confronted here with a careful exercise of discretion, I think we may properly affirm, and Judge Ripple very persuasively details the reasons why. But this is a close call because it is difficult to believe that a jury could view the machinations with the additional 13 vehicles as being other than conduct for which the defendant should be held criminally liable — or at least as going to his proclivity to violate the law.

. The district court's use of the term "prima facie” in the criminal context confounds me. As best I can figure, the district court intended "prima facie case” to mean enough *497evidence to survive a motion for a directed verdict. The district court was probably expressing a willingness to revisit the admissi-bilily of the challenged evidence, a normal trial practice.